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Thursday, December 13, 2012

More on the Second Circuit's First Amendment Ruling in Caronia

Last week, we posted about the Caronia decision from the U.S. Court of Appeals for the Second Circuit and David Lazarus's critique of the decision in the LA Times. Recall that, in Caronia, the court threw out a misdemeanor conviction of a drug company prescription drug rep on First Amendment grounds. The Times has now printed a letter to the editor by consumer advocate and First Amendment expert Ted Mermin (pictured to the right). The letter criticizes recent Supreme Court commercial speech rulings that formed the basis for Caronia. Here is the unedited version of Mermin's letter:

Thanks to David Lazarus for his recent column about the
Court of Appeals' decision finding it unconstitutional to criminalize the
promotion of off-label uses of prescription drugs. The Second Circuit's opinion
is deeply troubling but it is not, unfortunately, surprising. Instead, it is
the product of a string of decisions by the United States Supreme Court
providing increasing constitutional protection to commercial advertising.

There is nothing inevitable about giving "commercial speech" -- that
is, advertising -- the same constitutional protection as political or artistic
or religious speech. Before the 1970s, commercial speech was considered
entirely outside the scope of the First Amendment. And even after the Supreme Court
extended limited protection to advertising (because advertising for birth
control or abortion services or even lawyers contained information that
consumers might find helpful), it carefully distinguished the robust protection
provided to core, noncommercial speech.

A look at recent Supreme Court cases, and the lower court decisions
interpreting them, makes those times seem long ago. In the next year, the
Supreme Court may decide not only that drug makers can advertise wholly
untested uses of their products, but also that the federal government cannot
restrict tobacco advertising or require effective warnings on cigarette
packages. Why? Because a majority of the Court apparently doesn’t see a
clear distinction, for First Amendment purposes, between commercial advertising
and political or religious speech.

Unlike the Justices, most people don't have any problem with the distinction.
Generally, consumers think it's a pretty good idea to give the government
more leeway to regulate advertisements for potentially harmful products than
the speech of political leaders or preachers. But as long as the Court is
driven by abstraction rather than experience, the wisdom of the average
consumer will be excluded from judicial decisions that deeply affect our health
and our safety.